Madras High Court V.D. Grahalakshmi-vs-T. Prashanth on 21 November, 2011
DATED : 21. 11 .2011
THE HONOURABLE Mr.JUSTICE K. MOHAN RAM
THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI
C.M.A.No.1305 of 2009 and M.P.No.1 of 2009
V.D. Grahalakshmi … Appellant
T. Prashanth … Respondent
Appeal filed under Sec.19 of the Family Court Act, 1984 against the Fair and decreetal order passed by the learned Principal Judge, Family Court, Chennai in FCOP No.1992 of 2007 dated 30.4.2009. For appellant : Mr.Manoj Sreevalsan
For respondent : Mr.AR.L. Sundaresan
Senior Counsel for
Mr.P. Anandan Nagarajan
G.M. AKBAR ALI,J.,
Appeal filed under Sec.19of the Family Court Act, 1984 against the Fair and decreetal order passed by the learned Principal Judge, Family Court, Chennai in FCOP No.1992 of 2007 dated 30.4.2009.
2. The wife is the appellant. The appeal is preferred against the order of the family court dated 30.4.2009 declaring the marriage between the appellant and the respondent as null and void. An interesting question arises in this appeal is whether an husband can avoid a marriage on the ground of fraud due to the suppression of material fact of a prior registration of a marriage with the Marriage Registrar. For the sake of convenience, the wife is referred to as appellant and the husband is referred to as respondent in this appeal.
3. The facts leading to filing an application under Sec.12(1) (c)of The Hindu Marriage Act, 1955 are as follows:
4. The respondent T. Prasanth is a film celebrity. The appellant is also a graduate and belongs to a decent family and with the blessings of the well wishers of both the family the marriage between the appellant and the respondent was solemnized on 1.9.2005 according to Hindu Rites and Customs.
5. After the marriage, they lived together happily. The newly married couple enjoyed their initial period of married life. However, all happiness short lived and problems arose between the couple as well as in the family, details of which are not necessary.
6. The appellant became pregnant and the same was confirmed on 9.12.2005. The appellant went to her parents’ house on 2.1.2006 and she gave birth to a male child on 31.7.2006. After leaving the matrimonial home, the problem between the couple as well as the families worsened and according to the respondent the appellant and her family began to campaign so as to malign the name and reputation of the respondent.
7. The respondent was not informed about the Valaikappu (tisfhg;g[) function or the birth of the child or his naming ceremony. The respondent tried to resolve the problem through his friends and relatives. But there was no response from the appellant.
8. Therefore, the respondent filed a petition in OP No.2721 of 2006 on the file of the principal family court at Chennai for restitution of conjugal rights.
9. In fact, the proceedings started with the Honourable Judge working towards re-union and there were some signs of reconciliation between the parties. However, the gap widened when a criminal complaint was filed by the appellant for the alleged offence under Sec.498A IPC and Dowry Prohibition Act. However, the respondent did not loose hopes for re-union.
10. But to his surprise and shock, on 11.6.2007, he was informed that the appellant had earlier married one Narayanan Venu Prasad on 30.11.1998 under Hindu Rites and Customs and the said marriage has been registered in the office of the Registrar of Marriage on 30.12.1998. The respondent obtained a copy of the certificate of marriage and was totally shaken.
11. According to the respondent, the appellant or any member of family, never disclosed the registration of such marriage either to the petitioner or to any members of the family. When confronted, the appellant denied such marriage. Therefore, the respondent filed a criminal complaint. The respondent did not know whether the previous marriage still subsists but had he been informed of the earlier marriage, he would never have consented for the marriage with the appellant. In any event, according to the respondent, the suppression and non disclosure of this material fact by the appellant and members of her family amounts to fraud.
12. It his further contention that the consent of the respondent was obtained by deception and concealment of material fact and hence, the marriage between the appellant and the respondent is a voidable marriage and has to be annulled by the competent court. Stating so, the respondent has filed a petition under Sec.12(1)(c)of the Act.
13. The appellant filed a detailed counter denying all the allegations. The sum and substance of the counter statement is as follows:
14. According to the appellant, the attitude of the respondent and his family members changed when it was found that the appellant had become pregnant. They were not favourable about the child and they subjected the appellant to cruelty. The respondents mother had in fact wanted the baby to be aborted. The appellant was put through grave mental agony and torture and she was in fact sent away by the respondent and his parents on 2.1.2006. Thereafter, they never cared for her and visited her.
15. It is true that there was a counseling before the Family Court in the restitution proceedings. It is only the appellant who wanted to join with her husband. However, the respondent and his family members demanded the appellant to get a share in the property of her parents which resulted in filing a complaint under Sec.498A and Dowry prohibition Act. At this juncture, the respondent has come up with the story of a prior marriage between the appellant and one Narayana Venu Prasad which is not true. The respondent and the said Narayana Venu Prasad had colluded with each other in defaming the appellant. According to the appellant, it is an act of collusion and creation of documents by the husband and one Narayana Venu Prasad, a person whose marriage proposal the appellant refused.
16. With the husband expressing shock over the discovery of the prior marriage and its registration, the wife denying such marriage and claiming collusion between the husband and a third party, the parties went for a trial.
17. The husband alone was examined as P.W.1 who had produced Ex.P.1 to P.29 and the appellant was examined as R.W.1 and produced Exhibits R.1 to R.11. One Inspector of Police of All Women Police Station was also examined as R.W.2.
18. On the basis of evidence of P.W.1 and also on the basis of Ex.P.8 dated 14.11.2007, certified extract of the Marriage Register also filed as Ex.P.14 dated 12.6.2007, the learned Family Court Judge found that the marriage certificate produced by the respondent is a public document and the respondent had established his case that the consent of the husband was obtained by fraud and the appellant had suppressed the material fact that she had married one Narayanan Venu Prasad on 30.11.1998 and the same was registered on 30.12.1998 before the Joint Registrar of Marriage and therefore, it is a voidable marriage and declared the marriage dated 1.9.2005 as null and void. Aggrieved by this order, the wife is before this Court.
20. Assailing the reasons given by the Family Judge annulling the marriage, Mr.Manoj Srivalsan, the learned counsel for the appellant raised the following grounds: i) The petition filed under Sec.12(1)(c)of the Hindu Marriage Act 1955(hereinafter referred as Act) is not maintainable.
ii) The production of the registration certificate for the alleged first marriage of the appellant cannot be read in evidence as the same was not proved in accordance with law. iii) Raising a presumption that it is a public document by the trial court is unsustainable in the absence which is not proved and none of the witnesses including the Registrar of marriage were called to prove the fact of such registration; iv) The alleged marriage on 30.11.1998 itself was not proved and the trial court is wrong in shifting the burden on the appellant to disprove such marriage; v) The trial court is wrong in relying on the statement made under Sec.161 (3) of Cr.P.C by one Narayana Venu Prasad and 3 other witnesses to the police in Cr.No.16/2007; vi) There is a clear evidence to show that the respondent had acquaintance with Narayana Venu Prasad, the alleged contracting party for the earlier marriage and thereby there is a collusion between the parties to create documents; vii) The appellant has denied the alleged earlier marriage and the registration of the same and therefore the burden is heavily upon the respondent to prove the allegations which he miserably failed to prove.
21. In support of his contentions, the learned counsel relied on the following decisions:
i) AIR 1975 SC 1534( Dastane-vs-Dastane)
ii) CDJ 2000 SC 355 (Rosammal Issetheenammal Fernandez (dead) by Lrs-vs-Joosa Mariyan Fernandez)
iii) the judgment of High Court of Gowhati published in Manupatra in CRl.Rvn No.81 of 2009 dated 16.5.2011,(Smti Tania Kar-vs-Dr.Avijit Roy)
iv) 2010 (9) SCC 209 (Madan Mohan Singh and Others-vs-Rajni Kant and another)
v) 2010 (13) SCC 298 (Neelam Kumar-vs-Dayarani) and
vi) CDJ 2011 SC 207(H.Siddiqui (dead) by Lrs-vs-A. Ramalingam)
22. On the contrary, Mr.AR.L. Sundaresan, the learned senior counsel who represented for Mr.Anandan Nagarajan, the learned counsel for the respondent clarified that the respondent need not prove the factum of earlier marriage on 30.11.1998 as the petition is not filed under Sec.11 of the Act which covers the void marriage solemnized between two Hindus when one of the parties has a spouse living at the time of marriage.
23. The learned senior counsel pointed out that the petition is filed under Sec.12(1)(c)of the Act which deals with voidable marriage wherein the consent of a party was obtained by fraud on suppression of material fact and thereby rendering the marriage voidable.
24. The learned senior counsel pointed out that by production of a Marriage Registration certificate dated 30.12.1998, which is a public document, the respondent had proved the suppression of such registration of marriage which is a material fact and suppression of such fact would amount to fraud.
25. The learned senior counsel pointed out that the marriage is voidable and the same has been rightly accepted by the family court by declaring the marriage as null and void. The learned counsel relied on the following decisions: i) 1998 CRI.L.J 1476( Manjula-vs-Mani)
ii) 2004 (7) SCC 107 (Smt.Dayamathi Bai-vs-Sri K.M. Shaf)
iii) 2005 8 SCC 364,(State through Inspector of Police, A.P-vs-K. Narasimhachary)
26. We have carefully considered the rival contentions put forth on either side and perused the materials available on record.
27. The points arising for consideration in this appeal are:
a) Whether the registration of the marriage is substantial proof of a Hindu Marriage ?
b) Whether certificate of marriage is a public document and therefore, a presumption can be drawn under Sec.114 (e) of the Evidence Act?
c) whether the suppression of such registration of marriage will amount to fraud under Sec.12(1)(c)of the Act thereby amounting to voidable marriage ?
d) Whether the respondent is entitled to the relief of annulment of his marriage?
28. Point: a) Whether the registration of the marriage is substantial proof of Hindu Marriage ?:
Since the facts that the appellant and respondent were married on 1.9.2005 as per Hindu Rights and customs, their brief matrimonial life, birth of a male child during their wedlock and later separation due to misunderstanding are all admitted, we are not dwelling on those aspects. The allegations and the counter allegations are also not adverted to in this appeal.
29. It is admitted that the respondent husband alone was examined and as such, the alleged marriage dated 30.11.1998 between the appellant and one Narayana Venu Prasad was not proved. There is also no attempt to prove the said marriage.
30. It is fairly conceded by the learned senior counsel for the respondent that the petition was not filed on the ground that the marriage between the appellant and the respondent was solemnized when the earlier marriage was in subsistence. It is evident that under Sec.11 of the Act, any marriage solemnized between two Hindus when one party has a spouse living at the time of marriage, it is a void marriage. In other words, if the earlier marriage is subsisting, the subsequent marriage is void.
31. Since the petition is filed under Sec.12(1)(c)of the Act and the respondent claiming a fraud played on him by suppression of material fact viz., the Registration of the marriage between the appellant and one Naryana Venu Prasad before the Registrar of Marriage on 30.12.1998. The entire discussion is directed only on the effect of such registration.
12. Let us go through the relevant provisions. Sec.12(1)(c)of the Act reads as follows:
Voidable marriages Sec. 12 (1) (c)
that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner (was required under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint(Amendment) Act, 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
32. Sec.7 of the Act deals with ceremonies for a Hindu Marriage which reads as follows:
7. Ceremonies for a Hindu Marriage:(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
33. Sec.7(A) deals with Suya Mariyathai and Seerthirutha marriage which reads as follows:
7-A. Special Provision regarding Suyamariyathai and Seerthiruththa marriages:
(1) This section shall apply to any marriage between any two Hindus,whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons – (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or (b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or
c) by the tying of the thali
(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which this section applies solemnized after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law. (b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub section (3), all marriages to which this section applies solemnized at any time before such commencement shall be deemed to have been, with effect on and from the date of the solemnization of each such marriage, respectively, good and valid in law. (3) Nothing contained in this section shall be deemed to (a) render valid any marriage referred to in clause (b) of sub-section (2), it before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967 (i) such marriage has been dissolved under any custom or law; or
(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or
(b) render invalid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was valid at that time; or
) render valid a marriage between any two Hindus solemnized at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnized in accordance with the customary rites and ceremonies of either party thereto: Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement. (4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child:
Provided that in a case falling under sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub -clause (ii) (Tamil Nadu Act 21 of 1967, S.2 w.e.f.20.1.1968)
34. Sec.8 of the Act deals with registration of Hindu Marriages which reads as follows:
8. Registration of Hindu Marriages:(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose. (2) Notwithstanding anything contained in sub-section (1),the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees. (3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee. (5) Notwithstanding anything contained in this section, the validity of any Hindu Marriage shall in no way be affected by the omission to make the entry.
35. Sec.7 of the Act recognizes a marriage solemnized in accordance with the customary rights and ceremonies which shall include the Saptapadi (that is taking of seven steps of bridegroom and the bride jointly before the sacred fire).
36. Sec.7-A recognizes Suyamariathai and Seerthirutha marriages solemnized by performing other acts of marriages. For example, exchange of garlands or rings, tyeing of Thali etc., g
37. Sec.8 of the Act facilitates the proof of Hindu Marriages. A marriage solemnized either under Sec.7 or under Sec.7-A of the Act can be registered and entered in such a manner in a Hindu Marriage Register maintained by the Registrar of Hindu Marriage. The State Government may make rules governing such marriages. The Tamil Nadu Hindu Marriage Registration Rules 1967 prescribes the rules for registration of marriages.
38. Sec.8(1) enumerates the purpose of registration of Hindu Marriages. The purpose is to facilitate the proof of Hindu Marriage and the parties to any such marriage may have the particulars relating to their marriage entered in a Hindu Marriage Register kept for the purpose and it is also made clear that such entry in the Register is only optional and the validity of any Hindu Marriage shall in no way be affected by the omission to make such entry.
39. Therefore, a Hindu Marriage either solemnized under Sec.7 or 7(A) of the Act is to be proved independently and the Registration of such Hindu Marriage is only for the purpose of facilitating the proof of the Hindu Marriage and nothing more.
40. The registration presupposes a valid marriage either under section 7 or 7A of the Act and performing the acts, more particularly, Saptapadi under Hindu rites and customs, is sene qua non. Therefore, the extract of Hindu Marriage register, which is the statements of particulars of a a marriage, is not a substantial evidence to prove the marriage when one of the parties to the document repudiates the same. It may be a proof for all other purposes concerning the third parties to the marriage. We are conscious of a situation where a third party or a public authority hold that the certificate of marriage is not a substantial prove and call the party to prove the marriage. We wish emphasis that they can not. But once, one of the parties to the extract repudiates, then it is for the other party to prove the very fact of marriage either under sec.7 or 7-A of the Act. Merely because the marriage is registered or the particulars relating to the marriage is entered in a Hindu Marriage Register, will not go to show that a marriage was solemnized as per the conditions laid down in Sec.7 or 7(A) of the Act. Therefore, the registration of marriage is not a substantial proof of a Hindu marriage, if one party repudiates the same. The effect of production of a certificate is only to the extent that the parties have made such statements before a public authority.
41. b) Whether certificate of marriage is a public document and therefore, a presumption can be drawn under Sec.114 (e) of the Evidence Act?
42. The Tamil Nadu Hindu Marriage (Registration Rules) provides appointment for Registrar of Marriages and the manner of registration with prescribed forms. Under Rule 8 the Marriage Registrar shall on receipt of application scrutinize the same.
43. Under Rule 9, if the application is in order and if the parties to the marriage and the 3 witnesses to the solemnization of the marriage, who have signed in the application are present, the Marriage Registrar may register the marriage.
44. If the said person is not present, he shall issue notice fixing a date and time for their presence and then to proceed. Rule 10 deals with appearance of parties.
45. The contention of the learned counsel for the appellant is that neither the Registrar of Marriage nor the witnesses were examined before the trial court to prove the certificate of registration.
46. Ex.P.8 is the certified copy of the marriage dated 30.12.1998. It is in the prescribed form. The said prescribed form was prior to 22.10.2007 and therefore, the photos of the bridegroom and the bride are not affixed. After 22.10.2007 the format has been changed and the photos are to be affixed.
47. The name of the Husband is shown as Narayanan Venu Prasad and the full name of the wife is given as Dhanasekar Grahalakshmi. The three witnesses are shown as one Rajesh, Shankar and Chandrasekar. The marriage Registrar has certified as follows: Certified that the Marriage of Which particulars are given above has been registered by me under the Tamil Nadu Hindu Marriage (Registration) Rules, 1967 this 30th day of December 1998.
48. The learned counsel for the appellant would vehemently contend that neither the Marriage Registrar nor the witnesses were examined to prove the contents of Ex.P.8.
49. Sec.8 (4) would state that the Hindu Marriage Register shall be admissible as evidence of the statements contained therein and certified extracts therefrom shall be given by the Registrar on payment of prescribed fee.
50. Sec.114 of the Evidence Act deals with presumption of existence of certain facts. Under sub clause (e) the court may presume that judicial and official acts have been regularly performed.
51. The presumption drawn by the trial court is that under the Rules of the Hindu Marriage Registration, the public authority has entered the particulars and therefore, Ex.P.8 is presumed to be proved.
52. However, the learned counsel for the appellant would submit that the Registration of such marriage requires three witnesses and therefore, it is a document coming under Sec.68 of the Evidence Act and execution of the same has to be proved as per Sec.68 of the Evidence Act.
53. Sec.68 of the Evidence Act deals with proof of execution of document required by law to be attested and if a document is required by law to be attested, it shall not be used as evidence until one attesting witness is examined.
54. The learned counsel also relied on a decision reported in CDJ 2000 SC 355 (Rosammal Issetheenammal Fernandez (dead) by Lrs-vs-Joosa Mariyan Fernandez), wherein the Apex Court has held ‘9. … The main Part of Section 68 of the Indian Evidence Act puts on obligation on the party tendering any document that unless at lest one attesting witness has been called for proving such execution the same shall not be used in evidence’.
55. He also relied on a decision reported in CDJ 2011 SC 207(H.Siddiqui (dead) by Lrs-vs-A. Ramalingam)
`Admissibility of a document is one thing and its positive value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil . Therefore, it is the duty of the Court to examine whether documents produced in the Court or contents thereof have any probative value.
56. He quoted decision reported in 2010 (9) SCC 209 (Madan Mohan Singh and Others-vs-Rajni Kant and another) Wherein the Apex Court has
`20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information’.
57. On the contrary, the learned senior counsel for the respondent relied on a decision reported in 1998 CRI.L.J 1476( Manjula-vs-Mani, wherein the single judge of this court has held that the Hindu Marriage Register and the certified extract therefrom is a public document within the meaning of Sec.74 of the Evidence Act.
58. Sub clause (4) of Sec.8 of the Act indicates the Hindu Marriage Register extract is admissible in evidence with regard to the statement made therein. The official act of a public authority is to enter the said statements in the Marriage Register kept by him, therefore, we are of the considered view that it is a public document within the meaning of Sec.74 of the Evidence Act. Therefore, the certified extract is admissible in evidence.
59. However, according to the learned counsel for the appellant the statements therein viz., the performance of marriage solemnized by one Murali Iyer in accordance with customary rites at V.M Kalyana Mandapam, Alwarpet on 30.9.1998 in the presence of named three witnesses are not proved either by examining the Registrar of Marriage or the any one of the witnesses.
60. The learned counsel also submitted that it is the categorical evidence of the appellant that she had given her birth certificate, school certificates and Passport copies to the mother and to the sister of one Naryanan Venu Prasad and the same has been made use of for registration of such certificate with the collusion of the said person and the respondent.
61. The learned counsel pointed out that Ex.P.8 was obtained by the said Narayana Venu Prasad but produced by the respondent which would show that there is collusion between the respondent and the said Venu Prasad and therefore, the statements made in Ex.P.8 which is equivalent to Ex.P.14 has to be proved either by the Registrar of marriages or by the said witnesses.
62. As stated earlier, the certified copy of the Hindu Marriage Register is a public document within the meaning of Sec.74 of the Evidence Act. The certified copies are admissible as secondary evidence under Sec.65(e) and 65(f) of the evidence Act. 63) The Rules pertaining to the Registration of Marriage prescribes the official Act of the Registrar in scrutinizing the application and registering the same. Therefore, the official act is presumed to be done in the manner in which it is to be exercised as per the Rules. 64) In that event, presumption under Sec.114 (e)of the Act can be drawn to the fact that the statements therein were entered as per the prescribed rules in Ex.P.8 which is equivalent to Ex.P.14. Therefore the contentions of the learned counsel for the appellant can be accepted. The point is answered accordingly. 65) c) whether the suppression of such registration of marriage will amount to fraud under Sec.12(1) (c)of the Act thereby amounting to voidable marriage
66. The petition is filed under Sec.12(1)(c)of the Act. Sec. 12 of The Hindu Marriage Act XXV 1955 stood as follows before the amendment in 1976 and in 1978: Section 12: Voidable marriages:
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud; or
67. By Act 68 of 1976 the words or by fraud to the nature of the ceremony or as to any material fact or circumstance concerning the respondent was inserted w.e.f. 27.5.1976. In AIR 2001 Madhya Pradesh 1 (Prakash Singh Thakur-vs-Smt.Bharti) a learned single judge of Madya Pradesh High Court considered a similar issue where the husband has filed the petition under Sec.12(1)) on the ground of fraud of suppression of earlier marriage which is a material fact.
68. The learned single Judge held that an earlier marriage or divorce would amount to material fact and therefore, concealment of such fact would provide a ground to the petitioner to seek annulment of his or her marriage.
69. It may be noted that 12(1)(c)of the act was amended in the year 1976 to include fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
70. Prior to the amendment a person who freely consented to solemnization of marriage with knowledge of nature of ceremony and intention to marry could not avoid the marriage by showing that the respondent had induced by fraudulent statements relating to family, status, caste, religion, character or age of the respondent. Now after the amendment the petitioner can avoid the said marriage if he proves that a fraud has been played and certain material fact has been suppressed.
71. The Registration of Marriage, whether the earlier marriage is proved independently or not, is a material fact, because the marriage register is a public document intended for the parties to enter such particulars relating to their marriage and the statements therein are admissible in evidence. Surprisingly, there is no provision to cancel such registration.
72. The contention of the learned counsel for the appellant is that the appellant had no knowledge about the registration of such marriage and the respondent has failed to prove the same. The appellant has also come up with an explanation that the certificates given to the mother/sister of the said Narayana Venu Prasad would have been utilized by the said person with the collusion of the respondent.
73. We are unable to accept the said contention as the marriage was registered as early as 30.12.1998 when the respondent was no where in the picture till he was married to the appellant in the year 2005.
74. Therefore, the suppression of the marriage registered between the appellant and another person is a material fact amounting to fraud which comes under Sec.12(1)(c)of the Act and thereby render the marriage voidable. In any event, we want to make it clear that the alleged marriage dated 30.11.1998 is to be proved or disproved independently and the certificate is only taken into consideration only for the above said reason.
75. d) Whether the respondent is entitled to the relief of annulment of his marriage with the appellant?
76. Since we have held that a suppression of registration of earlier marriage amounts to fraud, the provision under Sec.12(1)(c) is attracted and the competent court is empowered to annul the marriage. The learned Principal Judge family court is right in holding the marriage dated 1.9.2005 is null and void and we have no reason to interfere.
77. In the result, the appeal is dismissed and the order passed by the learned principal family judge in declaring the marriage as null and void is confirmed. No costs. Consequently, connected MP is closed. sr
Principal Judge, Family Court